Psota v. Long Island R. Co.,

• Court: New York Court of Appeals
• Writing for the Court: CRANE
• Citation: 159 N.E. 180,246 N.Y. 388
• Decision Date: 22 November 1927
• Parties: PSOTA et al. v. LONG ISLAND R. CO. et al.

246 N.Y. 388
159 N.E. 180

PSOTA et al.
v.
LONG ISLAND R. CO. et al.

Court of Appeals of New York.

Nov. 22, 1927.

Action by George R. Psota, an infant, by Joseph Psota, his guardian ad litem, and others, against the Long Island Railroad Company and Antoinette D. Andrews. From a judgment of the Appellate Division, First Department (219 App. Div. 836, 220 N. Y. S. 912), affirming judgments of the Trial Term entered upon a verdict of a jury in favor of the plaintiffs against defendant last named, said defendant appeals.

Judgments reversed as to appealing defendant, and new trial granted.

[246 N.Y. 389]Appeal from Supreme Court, Appellate Division, Second Department.
Charles D. Miller and Ernest P. Hoes, both of New York City, for appellant.

246 N.Y. 390]Harold R. Medina, of New York City, and John R. Vunk, of Patchogue, for respondents.
Joseph F. Keany, of New York City, and Rowland Miles, of Northport, for respondent Long Island R. Co.

CRANE, J.

On Sunday, September 20, 1925, one Nash was driving a Ford station wagon belonging to the defendant Antoinette D. Andrews along one of the roads of St. James, Long Island. He overtook two children, Rosalie Psota and George Psota, who were walking along the road, and asked them if they wanted a ride. They got into the car, which a few minutes later was struck by a train of the Long Island Railroad Company, coming into the station at St. James. Nash was killed, and the two children suffered injuries, for which they and their father have brought suit against the railroad and the defendant Andrews. The jury exonerated the railroad company and found three verdicts in varying amounts against Mrs. Andrews.

[246 N.Y. 391]Although the Appellate Division unanimously affirmed the judgments, nevertheless it allowed an appeal to this court believing that there were questions involved which should be further reviewed.

[1] Nash had been employed by Mr. Andrews in his lifetime, and had continued in the general employ of the widow, Mrs. Andrews. On the trial she attempted to show that at the time of the accident Nash was not using the car with her consent, express or implied, was not engaged in operating it in the course of his employment, and, further, that his inviting the Psota children to ride with him was in violation of and contrary to her express instructions to

[159 N.E. 181

him. Both of these defenses were good if established, and she should have been permitted a full opportunity to offer this testimony if it were available. As to the first defense, the Appellate Division was of the opinion that the questions asked by counsel were not proper in form, and the answers therefore properly excluded. We must admit that the questions are not to the point and are very vague. They are the following: ‘Q. Was Mr. Nash on duty on that day, on this Sunday? Did he or was he performing any duty for you on that day? Was he in fact on that day working for somebody else?’ Objections to these questions were sustained. We think these questions could very well have been allowed. Mrs. Andrews should have been permitted to testify that on that day Nash was not on duty or at work for her. No doubt the answers would have led to other and better directed questions. At least, these were introductory matters bearing upon Nash's employment at the time of the accident. It was not a subject to be dealt with strictly. A certain latitude must be allowed in the examination of witnesses, and a certain indulgence to the characteristics of counsel. There is no set or artificial method for asking questions. While the questions no doubt called for conclusions, yet further examination or cross-examination would have brought out [246 N.Y. 392]the exact facts and the actual employment of Nash at the time. At least, the questions were directed toward the defense which Mrs. Andrews attempted to make, the defense that Nash was not using her car with her consent, or in her employment at the time, and they should have been allowed. However, we might not consider the exclusion of the answers to these questions as sufficient to require reversal if it were not that along with them were other rulings compelling reversal.

[2][3] Mrs. Andrews attempted to show through her counsel that she had given instructions to Nash not to invite strangers to ride in her car. Numerous questions were asked of Mrs. Andrews as to her instructions to Nash, and whether she had ever told him not to take anybody in the car with him. ‘Q. Had you ever told Mr. Nash not to take anybody in the car with him?’ may do as an example of the questions asked, to all...